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Factions on Death Penalty Issue Gird for Battle

When the man behind the battle royal between the Bronx District Attorney and the Governor of New York dies, does the battle expire, too?

No, both sides say emphatically. Yes, some legal experts say. Maybe, other legal experts say. In other words, a case that began last March by raising the novel question of whether the Governor has the power to remove the District Attorney from the prosecution of a potential death-penalty case has just leapt into the legal equivalent of a no-man's land.

Yesterday, all the parties in the dispute, in which the Governor did indeed hand over the case to the State Attorney General, said that they intended to continue the fight. The reason, they agreed, was that although Angel Diaz, the defendant who faced the death penalty for the murder of a Bronx police officer, was found hanged in his prison cell, the principles behind the dispute remain unresolved.

The case had been decided this summer in favor of the Governor and is scheduled for argument in an appellate court this fall. The parties are seeking a conclusive ruling on the issue, they say, because the same dispute could arise in a future case in the Bronx, where the District Attorney, Robert T. Johnson, has said he has deep reservations about seeking the death penalty.

Nor does the prosecution of the shooting of police officer Kevin Gillespie conclude with the death of Mr. Diaz. Dennis C. Vacco, the State Attorney General, to whom Gov. George E. Pataki handed the case, inherited not only Mr. Diaz, but also his two codefendants.

Unlike Mr. Diaz, however, those codefendants -- Jesus Mendez and Ricardo Morales -- were indicted for second-degree murder, not first-degree, or capital, murder. Mr. Vacco, therefore, could not ask for the death penalty against them. But Mr. Vacco announced yesterday that he intended to retain control over the prosecution of their cases.

There is a pragmatic reason for doing so. Mr. Vacco's office has already spent months working up the case, analyzing physical evidence and interviewing witnesses. Changing prosecutorial horses midstream could create enormous problems.

Even so, has the Governor lost his most valid reason for handing over the cases to Mr. Vacco? Or do the remaining defendants give Mr. Pataki an incentive to continue litigating the issue?

Vincent M. Bonventre, who teaches state constitutional law at Albany Law School, said that appeals courts would probably not rule on the death penalty aspect of the case. The original question in the dispute was whether the Governor's broad executive power to assign the State Attorney General to handle a case triumphed over the untested language of New York's new death penalty statute. That law says that in a first-degree murder case, a local district attorney has the power to choose whether to seek a sentence of life imprisonment or death.

''A court is most likely to say, 'No matter how we rule, it won't affect anything because there is no more Diaz case,' '' said Professor Bonventre. And so, he said, judges would probably declare the issue moot and reserve their decision until another case came before them.

But Mr. Pataki and Mr. Vacco would probably prevail on the question of whether Mr. Vacco could keep the other two defendants, he said. ''The state law that gives a governor authority to appoint the state attorney general to a case is unqualified,'' he said.

Norman Siegel, the executive director of the New York Civil Liberties Union, disagreed. Governors, he said, have always cited extraordinary circumstances to explain their decision to replace a district attorney. Even if Mr. Johnson's hesitation over seeking the death penalty amounted to such a circumstance, Mr. Siegel said, Mr. Diaz's death takes away the Governor's rationale.

''Since he's not giving the case back now, it only strengthens our challenge,'' Mr. Siegel said. The New York Civil Liberties Union sided with Mr. Johnson, arguing that installing Mr. Vacco violated the rights of Bronx voters to a district attorney who represents their views.

Robert Pitler, a professor at Brooklyn Law School who has written about the right of governors to replace district attorneys, said that the dispute remained a fascinating legal coin toss. ''The question is whether something that may have been valid in its inception somehow loses its validity when the circumstances change. I have no idea.''

Paul Shechtman, Mr. Pataki's top criminal justice adviser, said that Mr. Diaz's death did not weaken the state's hold over the prosecution of the remaining suspects. ''What if Dennis Vacco had decided, after all, not to seek the death penalty against Angel Diaz?'' he said. ''We came validly into the case at the outset, and it's appropriate for us to continue: we still have two live defendants, and that makes for a live case.''